Anything that doesn't work the way it was intended is called a lemon. Perhaps the best application of this definition is the "Lemon Test" composed by Chief Justice Warren Burger in his opinion for the 1971 Supreme Court case Lemon v. Kurtzman. The Lemon Test is one of the worst Supreme Court precedents ever recorded.


 

Anything that doesn't work the way it was intended is called a lemon.

It's true of cars, computers and even court cases.

Perhaps the best application of this definition is the "Lemon Test" composed by Chief Justice Warren Burger in his opinion for the 1971 Supreme Court case Lemon v. Kurtzman.

The Lemon Test is one of the worst Supreme Court precedents ever recorded.

It is subjective and limited in scope. Worse yet, it has been applied in cases where it should never have been used as a precedent.

The Lemon Test states: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion."

Each section holds subjective tests that could be interpreted differently by different judges. That's not good precedent.

Originally, Burger was writing for the majority of the court in striking down the practice in Rhode Island and Pennsylvania that allowed supplementing the pay of teachers at private religious schools who taught secular subjects.

The court's intent was to uphold First Amendment clause that states, "Congress shall make no law respecting an establishment of religion." The court held that, since a church sponsored these schools, the state paying their teachers advanced the work of that church. Even the very case that gave rise to the Lemon Test included a subjective ruling. Did supplementing teacher pay really advance the church, or merely the school it supported? A school has a secular purpose. The court has since determined that governments could fund hospitals that operated under the auspices of a church.

Why not a school? Only because Warren Burger said so.

That should never have become a precedent, yet 38 years later, it is still being used. Judges love it because it broadens their ability to impose personal beliefs in rulings.

But it gives rise to inconsistent rulings. The court system should never be inconsistent.

The establishment clause seemed very simple to the founders who fled England because of the legal ties between the church and the government.

Those ties were patently obvious and intentional. There was an official Church of England. The pilgrims that eventually settled America did so because their beliefs differed with those of the official church.

There was never an attempt by the pilgrims or Founding Fathers to keep religion out of daily life.

The establishment clause is closely related to and expounded upon in the free exercise clause that says Congress will also make no law prohibiting the free exercise of religion.

Is erecting a monument of the Ten Commandments more accurately described as the free exercise of religion or an establishment of a religion.

There are several recent examples of this type of monument being erected on government land.

Many are still facing action in court.

Recently, the Oklahoma Legislature voted to allow private donors to place a monument on state property near the Capitol. They believed this action was legal because of a recent Supreme Court ruling that held that Texas could continue to display a similar monument near their Capitol.

But a similar monument in Haskell County, Okla., was recently decreed to be unconstitutional by an appellate court in Denver.

What is the difference? Statements made by county commissioners when the monument was dedicated appear to be the determining factor.

"In particular, we find support for this conclusion in the public statements of Haskell County commissioners," the panel wrote.

What were the damning comments?

One unnamed commissioner allegedly said, "That's what we're trying to live by, that right there. ... The good Lord died for me."

So his belief that the good Lord died for him and the fact that the monument is on public property means it is unconstitutional. But if he would have said, "Well now, there's one fancy rock!" - a statement that could easily be attributed to a Haskell County resident - then the monument would have been somehow more constitutional.

One man's feeling about a monument shouldn't be used to determine its constitutionality.

Even the Jefferson Memorial bears an inscription where Jefferson swears "on the altar of God" against every form of tyranny. Congress opens every day of its session in prayer.

Allowing a monument that merely has an association with a religion does not constitute an establishment of religion.

The judges in Denver are using an outdated, subjective test to rule within their own personal beliefs. It is a discredit to the precedent and the court that applied it.

Augusta Gazette